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Don't Ask, Don't Tell (Part 1)

Don't Ask, Don't Tell (Part 1)

Just a brief note to let you know that this week we’re going to be covering Don’t Ask, Don’t tell, the first of a three-part episode arc. In this episode, we’ll be delving into what it was all about, the origin and history of the policy, and the legal challenges that it faced as it evolved.  The second episode will be about the intense social and legislative debate that existed in the politically charged social-issues climate surrounding the era, with the third episode diving into details about the eventual repeal, and where we are as a country currently with LGBT people in the military.

"Don't ask, don't tell" (DADT) was the official United States policy on military service by gays, bisexuals, and lesbians, instituted by the Clinton Administration on February 28, 1994, when Department of Defense Directive 1304.26 issued on December 21, 1993, took effect, lasting until September 20, 2011. The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants, while barring openly gay, lesbian, or bisexual persons from military service. This relaxation of legal restrictions on service by gays and lesbians in the armed forces was mandated by United States federal law Pub.L. 103–160 (10 U.S.C. § 654), which was signed November 30, 1993. The policy prohibited people who "demonstrate a propensity or intent to engage in homosexual acts" from serving in the armed forces of the United States, because their presence "would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability".

The act prohibited any homosexual or bisexual person from disclosing his or her sexual orientation or from speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the United States armed forces. The act specified that service members who disclose that they are homosexual or engage in homosexual conduct should be separated (discharged) except when a service member's conduct was "for the purpose of avoiding or terminating military service" or when it "would not be in the best interest of the armed forces". Since DADT ended in 2011, persons who are openly homosexual and bisexual have been able to serve.

The "don't ask" part of the DADT policy specified that superiors should not initiate investigation of a service member's orientation without witnessing disallowed behaviors, though credible evidence of homosexual behavior could be used to initiate an investigation. Unauthorized investigations and harassment of suspected servicemen and women led to an expansion of the policy to "don't ask, don't tell, don't pursue, don't harass".

Legislation to repeal DADT was enacted in December 2010, specifying that the policy would remain in place until the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certified that repeal would not harm military readiness, followed by a 60-day waiting period. A July 6, 2011, ruling from a federal appeals court barred further enforcement of the U.S. military's ban on openly gay service members. President Barack Obama, Secretary of Defense Leon Panetta, and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen sent that certification to Congress on July 22, 2011, which set the end of DADT to September 20, 2011.

Background

Dignity and Respect, the U.S. Army's 2001 training guide on the homosexual conduct policy, gave official guidelines on what can be considered credible information of someone's homosexuality.

Engaging in homosexual activity has been grounds for discharge from the American military since the Revolutionary War. Policies based on sexual orientation appeared as the United States prepared to enter World War II. When the military added psychiatric screening to its induction process, it included homosexuality as a disqualifying trait, then seen as a form of psychopathology. When the army issued revised mobilization regulations in 1942, it distinguished "homosexual" recruits from "normal" recruits for the first time. Before the buildup to the war, gay service members were court-martialed, imprisoned, and dishonorably discharged; but in wartime, commanding officers found it difficult to convene court-martial boards of commissioned officers and the administrative blue discharge became the military's standard method for handling gay and lesbian personnel. In 1944, a new policy directive decreed that homosexuals were to be committed to military hospitals, examined by psychiatrists and discharged under Regulation 615-360, section 8.

In 1947, blue discharges were discontinued and two new classifications were created: "general" and "undesirable". Under such a system, a serviceman or woman found to be gay but who had not committed any sexual acts while in service would tend to receive an undesirable discharge. Those found guilty of engaging in sexual conduct were usually dishonorably discharged. A 1957 U.S. Navy study known as the Crittenden Report dismissed the charge that homosexuals constitute a security risk, but advocated stringent anti-homosexual policies because "Homosexuality is wrong, it is evil, and it is to be branded as such." It remained secret until 1976. Fannie Mae Clackum was the first service member to successfully appeal such a discharge, winning eight years of back pay from the US Court of Claims in 1960.

From the 1950s through the Vietnam War, some notable gay service members avoided discharges despite pre-screening efforts, and when personnel shortages occurred, homosexuals were allowed to serve.

The gay and lesbian rights movement in the 1970s and 1980s raised the issue by publicizing several noteworthy dismissals of gay service members. Sgt. Leonard Matlovich appeared on the cover of Time in 1975—we covered his story, back in episode 6, so I encourage you to check that one out to hear more about his story. In 1982 the Department of Defense issued a policy stating that, "Homosexuality is incompatible with military service." It cited the military's need "to maintain discipline, good order, and morale" and "to prevent breaches of security". In 1988, in response to a campaign against lesbians at the Marines' Parris Island Depot, activists launched the Gay and Lesbian Military Freedom Project (MFP) to advocate for an end to the exclusion of gays and lesbians from the armed forces. In 1989, reports commissioned by the Personnel Security Research and Education Center (otherwise known as PERSEREC), an arm of the Pentagon, were discovered in the process of Joseph Steffan's lawsuit fighting his forced resignation from the U.S. Naval Academy. One report said that "having a same-gender or an opposite-gender orientation is unrelated to job performance in the same way as is being left- or right-handed." Other lawsuits fighting discharges highlighted the service record of service members like Tracey Thorne and Margaret Cammermeyer. The MFP began lobbying Congress in 1990, and in 1991 Senator Brock Adams and Rep. Barbara Boxer introduced the Military Freedom Act, legislation to end the ban completely. Adams and Rep. Pat Schroeder (D-Colorado) re-introduced it the next year. In July 1991, Secretary of Defense Dick Cheney, in the context of the outing of his press aide Pete Williams, dismissed the idea that gays posed a security risk as quote "a bit of an old chestnut" in testimony before the House Budget Committee. In response to his comment, several major newspapers endorsed ending the ban, including USA Today, the Los Angeles Times, and the Detroit Free Press. In June 1992, the General Accounting Office released a report that members of Congress had requested two years earlier estimating the costs associated with the ban on gays and lesbians in the military at $27 million annually.

During the 1992 U.S. presidential election campaign, the civil rights of gays and lesbians, particularly their open service in the military, attracted some press attention, and all candidates for the Democratic presidential nomination supported ending the ban on military service by gays and lesbians, but the Republicans did not make a political issue of that position. In an August cover letter to all his senior officers, Gen. Carl Mundy, Jr., Commandant of the Marine Corps, praised a position paper authored by a Marine Corps chaplain that said that "In the unique, intensely close environment of the military, homosexual conduct can threaten the lives, including the physical and psychological well-being of others". Mundy called it "extremely insightful" and said it offered "a sound basis for discussion of the issue". The murder of gay U.S. Navy petty officer Allen Schindler, Jr. on October 27, 1992, brought calls from advocates of allowing open service by gays and lesbians for prompt action from the incoming Clinton administration.

Origin

The policy was introduced as a compromise measure in 1993 by President Bill Clinton who campaigned in 1992 on the promise to allow all citizens to serve in the military regardless of sexual orientation. Commander Craig Quigley, a Navy spokesman, expressed the opposition of many in the military at the time when he said, "Homosexuals are notoriously promiscuous" and that in shared shower situations, heterosexuals would have an "uncomfortable feeling of someone watching".

During the 1993 policy debate, the National Defense Research Institute prepared a study for the Office of the Secretary of Defense published as Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment. It concluded that "circumstances could exist under which the ban on homosexuals could be lifted with little or no adverse consequences for recruitment and retention" if the policy were implemented with care, principally because many factors contribute to individual enlistment and re-enlistment decisions. On May 5, 1993, Gregory Herek, associate research psychologist at the University of California at Davis and an authority on public attitudes toward lesbians and gay men, testified before the House Armed Services Committee on behalf of several professional associations. He stated, "The research data show that there is nothing about lesbians and gay men that makes them inherently unfit for military service, and there is nothing about heterosexuals that makes them inherently unable to work and live with gay people in close quarters." Herek added, "The assumption that heterosexuals cannot overcome their prejudices toward gay people is a mistaken one."

In Congress, Democratic Senator Sam Nunn of Georgia led the contingent that favored maintaining the absolute ban on gays. Reformers were led by Democratic Congressman Barney Frank of Massachusetts, who favored modification (but ultimately voted for the defense authorization bill with the gay ban language), and Barry Goldwater, a former Republican Senator and a retired Major General, who argued on behalf of allowing service by open gays and lesbians. In a June 1993 Washington Post opinion piece, Goldwater wrote: "You don't have to be straight to shoot straight," after Congressional phone lines were flooded by organized anti-gay opposition, indicating substantial public opposition to Clinton's open service proposal.

Congress rushed to enact the existing gay ban policy into federal law, outflanking Clinton's planned repeal effort. Clinton called for legislation to overturn the ban, but encountered intense opposition from the Joint Chiefs of Staff, members of Congress, and portions of the public. DADT emerged as a compromise policy. Congress included text in the National Defense Authorization Act for Fiscal Year 1994 (passed in 1993) requiring the military to abide by regulations essentially identical to the 1982 absolute ban policy. The Clinton Administration on December 21, 1993, issued Defense Directive 1304.26, which directed that military applicants were not to be asked about their sexual orientation. This is the policy now known as "Don't Ask, Don't Tell". The phrase was coined by Charles Moskos, a military sociologist.

In accordance with the December 21, 1993, Department of Defense Directive 1332.14, it was legal policy that homosexuality was incompatible with military service and that persons who engaged in homosexual acts or stated that they are homosexual or bisexual were to be discharged. The Uniform Code of Military Justice, passed by Congress in 1950 and signed by President Harry Truman, established the policies and procedures for discharging service members. 

The full name of the policy at the time was "Don't Ask, Don't Tell, Don't Pursue". The "Don't Ask" provision mandated that military or appointed officials will not ask about or require members to reveal their sexual orientation. The "Don't Tell" stated that a member may be discharged for claiming to be a homosexual or bisexual or making a statement indicating a tendency towards or intent to engage in homosexual activities. The "Don’t Pursue" established what was minimally required for an investigation to be initiated. A "Don’t Harass" provision was added to the policy later. It ensured that the military would not allow harassment or violence against service members for any reason. The Servicemembers Legal Defense Network was founded in 1993 to advocate an end to discrimination on the basis of sexual orientation in the U.S. Armed Forces.

Court challenges

DADT was upheld by five federal Courts of Appeal. The Supreme Court, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., unanimously held that the federal government could constitutionally withhold funding from universities, no matter what their nondiscrimination policies might be, for refusing to give military recruiters access to school resources. An association of law schools had argued that allowing military recruiting at their institutions compromised their ability to exercise their free speech rights in opposition to discrimination based on sexual orientation as represented by DADT.

McVeigh v. Cohen

In January 1998, Senior Chief Petty Officer Timothy R. McVeigh (not to be confused with convicted Oklahoma City bomber, Timothy J. McVeigh) won a preliminary injunction from a U.S. district court that prevented his discharge from the U.S. Navy for "homosexual conduct" after 17 years of service. His lawsuit did not challenge the DADT policy, but asked the court to hold the military accountable for adhering to the policy's particulars. The Navy had investigated McVeigh's sexual orientation based on his AOL email account name and user profile. District Judge Stanley Sporkin ruled in McVeigh v. Cohen that the Navy had violated its own DADT guidelines: "Suggestions of sexual orientation in a private, anonymous email account did not give the Navy a sufficient reason to investigate to determine whether to commence discharge proceedings." He called the Navy's investigation "a search and destroy mission" against McVeigh. The case also attracted attention because a navy paralegal had misrepresented himself when querying AOL for information about McVeigh's account. Frank Rich linked the two issues: "McVeigh is as clear-cut a victim of a witch hunt as could be imagined, and that witch hunt could expand exponentially if the military wants to add on-line fishing to its invasion of service members' privacy." AOL apologized to McVeigh and paid him damages. McVeigh reached a settlement with the Navy that paid his legal expenses and allowed him to retire with full benefits in July. The New York Times called Sporkin's ruling "a victory for gay rights, with implications for the millions of people who use computer online services".

Witt v. Department of the Air Force

In April 2006, Margaret Witt, a major in the United States Air Force who was being investigated for homosexuality, filed suit in the United States District Court for the Western District of Washington seeking declaratory and injunctive relief on the grounds that DADT violates substantive due process, the Equal Protection Clause, and procedural due process. In July 2007 the Secretary of the Air Force ordered her honorable discharge. Dismissed by the district court, the case was heard on appeal, and the Ninth Circuit issued its ruling on May 21, 2008. Its decision in Witt v. Department of the Air Force reinstated Witt's substantive-due-process and procedural-due-process claims and affirmed the dismissal of her Equal Protection claim. The Ninth Circuit, analyzing the Supreme Court decision in Lawrence v. Texas (2003), determined that DADT had to be subjected to heightened scrutiny, meaning that there must be an "important" governmental interest at issue, that DADT must "significantly" further the governmental interest, and that there can be no less intrusive way for the government to advance that interest.

The Obama administration declined to appeal, allowing a May 3, 2009, deadline to pass, leaving Witt as binding on the entire Ninth Circuit, and returning the case to the District Court. On September 24, 2010, District Judge Ronald B. Leighton ruled that Witt's constitutional rights had been violated by her discharge and that she must be reinstated to the Air Force.

The government filed an appeal with the Ninth Circuit on November 23, but made no attempt to have the trial court's ruling stayed pending the outcome. In a settlement announced on May 10, 2011, the Air Force agreed to drop its appeal and remove Witt's discharge from her military record. She will retire with full benefits.

Log Cabin Republicans v. United States of America

In 2010, a lawsuit filed in 2004 by the Log Cabin Republicans, the nation's largest Republican gay organization, went to trial. Challenging the constitutionality of DADT, the plaintiffs stated that the policy violates the rights of gay military members to free speech, due process and open association. The government argued that DADT was necessary to advance a legitimate governmental interest. Plaintiffs introduced statements by President Barack Obama, from prepared remarks, that DADT "doesn't contribute to our national security", "weakens our national security", and that reversal is "essential for our national security". According to plaintiffs, these statements alone satisfied their burden of proof on the due process claims.

On September 9, 2010, Judge Virginia Phillips ruled in Log Cabin Republicans v. United States of America that the ban on service by openly gay service members was an unconstitutional violation of the First and Fifth Amendments. On October 12, 2010, she granted an immediate worldwide injunction prohibiting the Department of Defense from enforcing the "Don't Ask Don't Tell" policy and ordered the military to suspend and discontinue any investigation or discharge, separation, or other proceedings based on it. The Department of Justice appealed her decision and requested a stay of her injunction, which Phillips denied but which the Ninth Circuit Court of Appeals granted on October 20th and stayed pending appeal on November 1st. The U.S. Supreme Court refused to overrule the stay. District Court neither anticipated questions of constitutional law nor formulated a rule broader than is required by the facts. The constitutional issues regarding DADT are well-defined, and the District Court focused specifically on the relevant inquiry of whether the statute impermissibly infringed upon substantive due process rights with regard to a protected area of individual liberty. Engaging in a careful and detailed review of the facts presented to it at trial, the District Court properly concluded that the Government put forward no persuasive evidence to demonstrate that the statute is a valid exercise of congressional authority to legislate in the realm of protected liberty interests. See Log Cabin, 716 F. Supp. 2d at 923. Hypothetical questions were neither presented nor answered in reaching this decision. On October 19, 2010, military recruiters were told they could accept openly gay applicants. On October 20, 2010, Lt. Daniel Choi, an openly gay man honorably discharged under DADT, re-enlisted in the U.S. Army.

Following passage of the Don't Ask, Don't Tell Repeal Act of 2010, the Justice Department asked the Ninth Circuit to suspend the Log Cabin Republican’s suit in light of the legislative repeal. LCR opposed the request, noting that gay personnel were still subject to discharge. On January 28, 2011, the Court denied the Justice Department's request. The Obama administration responded by requesting that the policy be allowed to stay in place while they completed the process of assuring that its end would not impact combat readiness. On March 28, the LCR filed a brief asking that the court deny the administration's request.

In 2011, while waiting for certification, several service members were discharged under DADT at their own insistence, until July 6 when a three-judge panel of the Ninth Circuit Court of Appeals reinstated Judge Phillips' injunction barring further enforcement of the U.S. military's ban on openly gay service members. On July 11, the appeals court asked the DOJ to inform the court if it intended to proceed with its appeal. On July 14, the Justice Department filed a motion "to avoid short-circuiting the repeal process established by Congress during the final stages of the implementation of the repeal," and warning of "significant immediate harms on the government". On July 15, the Ninth Circuit restored most of the DADT policy, but continued to prohibit the government from discharging or investigating openly gay personnel. Following the implementation of DADT's repeal, a panel of three judges of the Ninth Circuit Court of Appeals vacated the Phillips ruling.

This concludes the first chapter in the DADT episode arc. Stay tuned next week when we cover the intense judicial, social, and legislative debate over Don’t Ask Don’t Tell. 

Don't Ask, Don't Tell (Part 2)

Don't Ask, Don't Tell (Part 2)

Tom of Finland

Tom of Finland